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  • 2002-09-16
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Olanudu v. Temiye.

CHIEF JOSEPH OLANUDU

APOSTLE THOMAS  BABA-AGBA

V

MOSES TEMIYE

CHIEF  OLOTO OGUNMUSI

OMETAN ANDEMU

JOHNSON GEGEDE

COURT OF APPEAL

( BENIN DIVISION )

NIKI TOBI, JCA ( Presided )

BABA ALKALI BA’ABA, JCA

SAKA ADEYEMI IBIYEYE, JCA ( Read the Lead Judgment )

CA/B/289/96

TUESDAY, 10TH JULY, 2001

ACTION - Joinder of issues - How to decipher whether parties have joined issues for trial

APPEAL - Findings of fact of trial court - Whether can be lightly interfered with - Notable pronouncement on the perverse irregularities necessitating interference in this case by appellate court

COURT - Issues in controversy - Primary duty of court to identify

COURT - Jurisdiction of trial court - Whether its jurisdiction is deciphered from evidence or pleadings

COURT - Visit to locus in quo - Whether trial Judge can delegate authority to visit locus in quo to Customary Court Judge who later comes to give evidence at the proceedings thereat - Two procedures for a visit to locus in quo - Nullity of a visit to locus in quo by delegated authority EVIDENCE - Evidence at trial - Need to relate to pleadings - Effect of evidence at variance with pleadings

EVIDENCE - Pleadings - Need to relate evidence to pleadings - Effect of evidence at variance with pleadings

EVIDENCE - Visit to locus in quo - Whether court can delegate responsibility to visit locus - Whether trial Judge in a position of witness on a visit to locus in quo - Two procedures for a visit to locus in quo - Nullity of a visit to locus in quo by delegated authority

JUDGMENT AND ORDERS  - Retrial order - When made - Basis therefor -  What order of retrial implies - Need to exercise caution before making

JUDGMENT AND ORDERS - Order of retrial - What it implies - When to be made

JURISDICTION - Trial court’s jurisdiction - Where deciphered - Whether from evidence or pleadings

MAXIM - Nullus commodum capare potest de injuria sua propria - Meaning and application of

NOTABLE PRONOUNCEMENT - Perverse irregularities which occasioned a miscarriage of justice in this case and necessitated interference by the Court of Appeal

PARTIES - Joinder of issues by parties - How to decipher whether parties have joined issues for trial

PLEADINGS - Bindingness of - Need to relate evidence to pleadings Effect of evidence at variance with pleadings

PLEADINGS - Need to relate evidence to pleadings - Effect of evidence at variance with pleadings

PRACTICE AND PROCEDURE - Findings of fact of trial court - Whether can be lightly interfered with - Notable pronouncement on the perverse irregularities which occasioned a miscarriage of justice and necessitated interference by the Court of Appeal

PRACTICE AND PROCEDURE - Joinder of issues - How to decipher whether parties have joined issues for trial

PRACTICE AND PROCEDURE - Order of retrial - When made - Basis therefor - What it implies - Need to exercise caution before making

PRACTICE AND PROCEDURE - Visit to locus in quo - Whether trial

Judge can delegate authority to visit locus in quo to Customary Court Judge who later comes to give evidence at the proceedings thereat - Two procedures for a visit to locus in quo - Nullity of a visit to locus in quo by delegated authority

WORDS AND PHRASES - Order of retrial - What it implies - When to be made

WORDS AND PHRASES - Visit to locus in quo - Meaning of

Issues:

1.            Whether the learned trial Judge was right in holding that there was no land dispute in this case.

2.            Whether the identity of the land was in issue on the pleadings and at the trial.

3.            Whether the trial court properly appraised, evaluated and considered the totality of the evidence adduced in this case.

4.            Whether the learned trial Judge was right in delegating his judicial powers/functions of visiting the locus in quo to a stranger to the proceedings.

Facts:

The plaintiffs/appellants commenced this action against the defendants/ respondents in the Okitipupa High Court claiming for declaration of title to Moboro land, damages for trespass and injunction. The defendants filed a statement of defence in which they joined issues with the plaintiffs over the land, the subject matter of plaintiffs’ suit but also counter-claimed for similar reliefs as plaintiffs over a different land described as Oriyanrin.

In the course of trial, the learned trial Judge believed it was necessary to visit the locus in quo but delegated his responsibility in this respect to the Acting President of Grade 1 Customary Court Igbekebo, who, indeed, visited the locus and, testified as DW3 and tendered his inspection report as exhibit A. At the close of evidence and addresses, the court entered judgment for the defendants and dismissed plaintiffs’ claims. Dissatisfied, the plaintiffs filed this appeal.